POLICIES FOR THE NEXT ADMINISTRATION. PART 5: THE REGULATORY STATE
This is the fifth in a series on the major policy ideas — from Left and Right — that should guide the next presidential administration's agenda. (For the opposing view, see Paul Verkuil, "The Checks & Balances of the Regulatory State.")
Administrative power is an evasion of the Constitution’s paths of power and a profound assault on freedom. It is especially egregious because it is unnecessary and dangerous. The next president therefore should cut back on this power.
Throughout history, all sorts of governments, whether monarchical or republican, have been frustrated by the need to govern through law and the courts. In response, they developed other pathways for binding their peoples — that is, for creating legal obligation. Whether called “absolute power,” “prerogative power,” or “administrative power,” these other pathways constitute an evasion of governance through law and the courts.
This matters constitutionally because the U.S. Constitution establishes two avenues for binding Americans: legislatively, through acts of Congress (or treaties ratified by the Senate); or judicially, through acts of the courts. In contrast, administrative power binds through agency rulemaking and adjudication, and it thereby evades the Constitution’s channels for imposing legal obligation.
None of this is to deny the breadth of executive power. Of course, the executive can discretionarily distribute benefits authorized by Congress, can prosecute offenders in the courts, can control various types of unlawfully present aliens, and so forth. But the executive’s administrative acts — its rules and adjudications that purport to create legal obligation — evade the Constitution’s pathways of power.
A Civil Rights Issue
Although administrative power is often denounced for its economic burdens, it is more centrally a civil-rights problem. In specifying legal duties, administrative rules deny Americans their right to be subject only to such federal legislation as is enacted by Congress, which is elected. In imposing legal duties, administrative adjudications deprive Americans of their right to be subject only to such federal judicial decisions as come from a court, with a jury, an independent judge, and the due process of law (including discovery rights and the regular burdens of proof and persuasion).
To be sure, defendants can appeal from administrative agencies to the courts. But even there, because the courts give “deference” to administrative fact-finding and to administrative interpretation of federal statutes and administrative rules, defendants do not get a jury or a judge’s independent judgment. Indeed, because of the deference, the courts tend to repeat most of the administrative violations of procedural rights.
The judicial injustice is most severe when the government is a party to a case. In such instances, judicial deference is a pre-commitment in favor of the government’s version of the facts and its position on the law. This is systematic judicial bias in favor of one of the parties — the most powerful of parties — and a gross denial of due process.
Administrative power thus eviscerates central freedoms established by the Constitution and the Bill of Rights. And, far from being cured by judicial review, the loss of rights gets repeated in the courts.
Unnecessary and Dangerous
Administrative power has long been justified as a practical necessity — as something inevitable in our complex and rapidly changing, modern society. But what if it is unnecessary and even dangerous?
Is administrative power the only means of rapid legislative change? Actually, when Congress wishes, it can act faster than most agencies, while relying on their expertise. Accordingly, popular complaints about Congressional “gridlock” do not usually reflect the realities of institutional impediments, but instead typically serve to justify circumventing the political obstacles inherent in representative politics.
Let’s pretend, however, that gridlock really is an institutional rather than a political impediment. How much administrative power actually involves genuine emergencies — matters that simply cannot wait for Congress to act? In fact, most administrative power effectuates long-term policies, and most claims of emergency are merely excuses to shift power out of Congress.
Does complexity require administrative power? Leaving aside the question whether complex societies really need complex rules, federal statutes obviously can be just as complex as agency rules. The only difference is that statutes are adopted by Congress rather than by agencies.
What about the value of impartial administrative expertise? Unfortunately, there is reason to fear that industry has much influence over agency regulation, especially where agency experts are so short of expertise that they rely on regulated industries to write the regulations. This happened, for example, with the 2010 net neutrality rules.
Those who assert the need to depart from the Constitution have the burden of proof, and the arguments about the necessity of administrative power are empirical. Nonetheless, they are rarely backed up with scientifically serious, empirical evidence. Instead, the alleged necessity of administrative power tends to be merely a conceptual point — an academic construct — rather than a matter of serious empirical evidence.
Meanwhile, the empirical evidence of the danger from administrative power is mounting. Not being directly accountable to the people — or even to judges who act without bias — administrative power crushes the life and livelihood out of entire classes of Americans, depriving them of work and even of lifesaving medicines. It therefore is difficult to avoid the conclusion that, overall, the administrative assault on basic freedoms is both unnecessary and dangerous.
What Is to Be Done?
What should a president do about administrative power? As a practical matter, he or she should recognize that there is no political advantage in having all of this power as it will eventually be in the hands of his or her political opponents. More generally, the president should recognize that by shifting power out of the legislature and the courts, administrative power undermines Americans’ attachment to government. Above all, he or she should hope to place America back on the Constitution’s paths of governance. He thereby could peacefully accomplish for Americans the sort of reform that other peoples have struggled to achieve only through revolution and civil war.
To this end, the president, with the advice of his attorney general, could begin by doing the following seven things.
1. He or she could require some agencies to send their existing and proposed rules to Congress for enactment. Then, if the sky doesn’t fall, he or she could require this of some other agencies, and so on and so forth. Agencies would still contribute their expertise and drafting. All that would change is that Congress, rather than agency heads, would have the final word on whether to adopt the rules.
2. The president could require agencies to refrain from asking courts for deference on any question, whether of fact or law. When the government is a party to a case, the judges who defer to agencies are engaging in systematic bias in favor of one of the parties, thereby denying the other party the due process of law. And the government lawyers who ask judges to do this are similarly denying due process. Again, the reform could be done cautiously, agency by agency, rather than in one fell swoop.
3. The president could bar agencies from violating the due process of law, thus requiring them to proceed before real judges. For example, many agencies can choose to proceed either administratively or in court. The president could gradually but firmly require them to go to court. Simultaneously, he or she could ask Congress to increase the number of federal judges, to enable the courts to handle the increased caseload.
4. The president could prohibit agencies from self-dealing — as when they keep the proceeds of their fees, taxes, forfeitures, or penalties — and in securing the proceeds for the Treasury, he or she could ask Congress to appropriate funds for the agencies.
5. He or she could bar agencies from issuing waivers and could ask Congress to adjust statutes that seem to depend on them.
6. The president could forbid agencies (such as the Department of Health and Human Services and the Federal Communications Commission) from using administrative power to license speech and the press in violation of the First Amendment.
7. He or she could ask Congress to remove officer immunity and thereby restore civil damages actions against federal officers — at least for officials who sit behind desks — so that Americans could enforce the constitutional and statutory limits on abuses of power.
Put simply, the next president could begin to dismantle administrative power, thereby restoring confidence in the Constitution, the Bill of Rights, and our government. None of this would be easy. But where Congress and the courts acquiesce in a dangerously unconstitutional mode of government, what remedy is left to the people? In these circumstances, one must hope for presidential action, before the problem and the remedy become worse.
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School, and the author of Is Administrative Law Unlawful?.
Author’s Recommended Reading:
Philip Hamburger, Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2015).
Philip Hamburger, “Chevron Bias,” George Washington Law Review Vol. 84 No. 5 (September 2016).
Philip Hamburger, “The History and Danger of Administrative Law,” Imprimis Vol 43 No. 9 (September 2014).
(Read the response by Paul Verkuil.)